A federal judge says ADA Robert Zangala should have known "fuck your shitty town bitches" was protected speech.

While driving through Liberty, New York, on May 4, 2012, Willian Barboza, a 21-year-old motorist from Connecticut, was pulled over for speeding. Barboza decided not to contest the fine, but he expressed his displeasure on the payment form he mailed to the Town of Liberty Justice Court. "FUCK YOUR SHITTY TOWN BITCHES," he wrote in capital letters. He also crossed out Liberty and replaced it with Tyranny.

Five months later, as if to confirm that description, local police arrested Barboza for "aggravated harassment in the second degree"—a charge that was ultimately dismissed by a municipal judge who commented that "no citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected" by the First Amendment. Last week, in a decision that the New York Civil Liberties Union announced yesterday, a federal judge agreed, allowing Barboza's lawsuit against the town and a local prosecutor to proceed. The decision regarding the assistant district attorney is especially notable because prosecutors are rarely held accountable for violating people's constitutional rights.

"Plaintiff's arrest violated his clearly established constitutional right to engage in and be free from arrests because of protected speech," said U.S. District Judge Cathy Seibel at a hearing in White Plains last Thursday. The provision under which Barboza was charged, New York Penal Law Section 240.30(1), made it a Class A misdemeanor to communicate with someone "in a manner likely to cause annoyance or alarm" and "with intent to harass, annoy, threaten or alarm" that person. Last year the New York Court of Appeals, the state's highest court, overturned that provision on First Amendment grounds. But even before then, Seibel said, it was clear the statute was unconstitutional unless it was narrowly construed to cover only "fighting words" or "true threats," two categories of speech that the U.S. Supreme Court has said are not protected by the First Amendment.

Barboza's written protest of his speeding ticket, although it upset the clerks at the town court, clearly did not fit either category. The fighting words doctrine applies only to in-person speech that is "inherently likely to provoke a violent reaction," while true threats communicate an intent to commit an act of violence against a particular individual or group. Furthermore, in 2003—nine years before Barboza's arrest—the New York Court of Appeals had rejected aggravated harassment charges against a woman who left "crude and offensive" messages on the answering machine of the Ossining Parking Violations Bureau. "That decision is on all fours with this case," Seibel said. "It dealt with offensive language used to express to government employees dissatisfaction with government action."

In short, Sullivan County Assistant District Attorney Robert Zangala, who instructed police to arrest Barboza, should have known that action was unconstitutional, and it's pretty clear he did. Seibel noted that Zangala and his boss, Sullivan County District Attorney James Farrell, "discussed the fact that plaintiff might have a First Amendment defense to the charge," but "Farrell instructed Zangala to file the charge" anyway. "I don't quite see how one can at once believe that the First Amendment could be raised as a defense to the charge and at the same time be unaware of any constitutional impediments to bringing the charge," Seibel said. "It almost sounds like D'Agata and Farrell knew the arrest was unconstitutional but were willing to go forward and wait and see if plaintiff would realize it."

Because prosecutors enjoy "absolute immunity" for pursuing charges against a defendant, Barboza cannot hold Zangala responsible for that decision. But since "a prosecutor's participation in the execution of an arrest is not protected by absolute immunity," Seibel said, Zangala cannot take refuge behind that impervious shield. Nor does he deserve qualified immunity, she said, because the arrest violated a clearly established right. Hence Barboza's claim against Zangala can proceed to trial, which will "determine the damages, if any."

By contrast, Seibel dismissed Barboza's claim against Detective Steven D'Agata and Officer Melvin Gorr, who took him into custody, because they acted under Zangala's direction. "In these circumstances, where Zangala prompted D'Agata to draft the charge, Zangala let D'Agata know that he and his boss approved of it and Zangala reviewed and approved the instrument before it was filed, the officers could hardly be expected to refuse the ADA's request or instructions," Seibel said. "It would not be reasonable to expect officers to know that an action seemingly endorsed by the district attorney, assistant district attorneys, and a judge was not proper." The judge was Town Judge Brian Rourke, who also played a key role in the violation of Barboza's rights, referring the case to Zangala and ordering Barboza to appear in court so he could be arrested.

Although Seibel ruled that D'Agata and Gorr are protected by qualified immunity, she nevertheless concluded that Barboza should be allowed to pursue his claim against Liberty by arguing that the town failed to train its police officers in how to avoid arresting people for exercising their First Amendment rights. Remarkably, Police Chief Scott Kinne "testified that he was [not] aware of any cases limiting the application of Section 240.30(1), any court rulings interpreting the law, or any First Amendment problems arising from the law." Barboza's lawyers called Seibel's attention to nine Liberty cases brought under that provision between 2007 and 2010 that arguably involved constitutionally protected speech, plus similarly questionable cases of "disorderly conduct." Although Seibel expressed skepticism that Barboza will be able to meet the "stringent standard" for proving a failure-to-train claim, which requires showing "deliberate indifference" to constitutional violations, she said he should get a chance to make his case.

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…Class A misdemeanor to communicate with someone “in a manner likely to cause annoyance or alarm” and “with intent to harass, annoy, threaten or alarm” that person.

“Annoyance.” There shouldn’t have to be a challenge before an unconstitutional law is tossed out. Everything that gets passed should have to be ruled on its constitutionality before it is enacted. State and federal supreme court justices should start earning their pay.

It is, of course, painfully regrettable that a group of liberal judges decided to eliminate one of our best tools for combating online harassment, but the crucial thing to remember is that before it was foolishly declared “unconstitutional,” the statute in question did allow prosecutors to stop a troll who had posed an insidious danger to society by virtue of his use of speech triggers and micro-aggression to criminally twist words and stir up controversy at New York University. See the documentation of America’s leading criminal satire case (a report on which is linked in the above article) at:

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I believe it’s pretty rare for jurors to get hit with contempt. That sort of thing makes it more difficult to get people to show up for jury duty, which is already a problem. You pretty much have to post on FB about the case or brag publicly about having watched coverage for the case.

Remarkably, Police Chief Scott Kinne “testified that he was [not] aware of any cases limiting the application of Section 240.30(1), any court rulings interpreting the law, or any First Amendment problems arising from the law.”

This is what happens when a written constitution becomes a “living constitution”. Educated people who are not specialists in constitutional law lose confidence in their ability to interpret simple words like “shall make no law … abridging freedom of speech, or of the press” because they don’t know how the cancer in the living constitution has distorted the interpretation of those words.

It would be interesting to have SCOTUS revisit all of its decisions from the last 50 years with only the actual Constitution for guidance. Imagine how the decisions would change if they weren’t allowed to consider precedent.

It doesn’t help to carve out exceptions for slander and libel either, or fighting words, or true threats.

One my surprises in self-education was the founding fathers who did not want a bill of rights, on the grounds that spelling out a few rights would make unenumerated rights seem lesser. That sure has happened with the evisceration of the 9th and 10th amendments.

If I could make one change to the constitution from day one, it would allow individuals to sue for unconstitutional laws in jury trials. It’s fine and dandy to let states have some powers as a check on the feds, but what little power they had was mostly gutted by making senators popularly elected and expanding the commerce clause. If ordinary citizens could overturn unconstitutional laws, it would be a powerful break on the expansion of government, especially because they would ignore precedent and would not be able to create new laws.

I’ve had a couple long conversations with folks I know on the popular election of senators and how that is a problem. It’s such a subtle issue. I’m not even sure going back to state legislatures selecitng their senators would improve things at this point, but I think it’s clear that a federal government where the individual states as soverigns have no representation is allowing the Feds to run roughshod over them.

Absent that I think the next-best option would be some senator who was just really passionate about the role of the Senate as the senior house of a co-equal branch of government. Rand could possibly have been that guy, but I think he got too close to the brass ring.

That sounds like a really good idea. Until you realize that Trump is polling above single digits.

“The People” would no more protect the constitution than they would avoid electing people who run up deficits. Remember, “The People” roundly rejected allowing gay people to properly sanction their romantic partnerships. “The People” have been perfectly happy to get whipped up into mob action plenty of times. In fact, “The People” have a tendency to push their leaders toward the all-intrusive state we abhor. “The People” were four square behind the Iraq war and the USA Patriot Act.

Then you must not, truly believe in the Constitution, because it puts some decisions in the very hands of “the people”. Most pertinently to retain rights not enumerated and to have equal ability, with the states, to have power over issues not delegated to the United States by the Constitution. Both of which were trampled on to obtain the result you desire in the homo “marriage” issue. Unfortunately, it is thinking, like yours, that comes to a conclusion you want, through extra-constitutional means that has made the Supreme Law of the Land into a malleable artifice. Why do you hate America, so much?

As much as I like the content of the 9th and 10th amendments, I really don’t see how the 9th could ever have had any real force to it. It is so vague about which rights people retain that every person would have a different idea about what they mean. The 10th probably should have limited the federal government a whole lot.

I don’t think it would have worked any better without a BOR. Honestly, I don’t think laws or constitutions matter much at all. The federal government has ignored big parts of the constitution from day one. Rule of law is an illusion.

Educated people who are not specialists in constitutional law lose confidence in their ability to interpret simple words

While yes, I agree with this, Liberty, NY is basically deliverance country and I’d be surprised if half of the local populace finished high school so I’m not confident that ‘educated’ is a word that can be ascribed here.

You don’t need to be educated. You just need to speaking fucking English. And it goes beyond this thing. There’s this cult of expertise going on, where nobody is willing to understand anything, no matter how effortlessly, that falls within the domain of some expert, and certainly will never abide questioning the determination of the expert, no matter how patently ludicrous. It gets worse when the person recognised as expert isn’t; for example, people stupidly deferring to peace officers in questions of law. If anything, it gets more insane when it comes to physicians, who render their explications needlessly esoteric and mystifying and discourage any real questioning by patients, or even get actively hostil about it. I’ve had docs flip out and start ranting at me in response. One guy I knew left a note with his oncologist asking something about the treatment, the doc wrote an extensive, and extremely obnoxious, response and had his assistant call and read it to him. The situation arising from the fact that patients almost never question their doctors or try to understand anything. I’ve known people going in for neurosurgeries and don’t even know what the fuck is going to be done to them or what, for sure, it’s supposed to do, who defend their idiocy astringently, saying, “The Doc says they need to do this surgery!” The end. Write a blank check.

I don’t get the “fightin’ words” cut out from the first amendment. These days, literally anything you say could be “inherently likely to provoke a violent reaction” if said to the wrong person. It’s a weird cut out because it depends on the state of mind of the person listening to the speech, rather than the speech itself or the state of mind of the person speaking.

If judges were to go by such simple phrases as “shall make no law” or “shall not be infringed”, there would be no need for any lawyering education and ordinary people could understand the constitution by themselves. Judges are human; they too feel the urge to make their jobs seem more important than they really are.

Fun fact: Chaplinsky was a Jehovah’s Witness who told a New Hampshire town marshal who was attempting to prevent him from preaching that he was “a God-damned racketeer” and “a damned fascist” and was arrested.

I’ve read a million police reports, many describing events which I personally witnessed. ALWAYS, the accused’s speech was full of obscenities in the report, while the officer’s speech was devoid of them; and whenever I had witnessed the events myself, the majority of obscenities reportedly said by the accused were not said and the peace officer employed a heavy dose of profanity which became absent in the report. Of course, in a number of reports of things I witnessed, nothing either party actually said appears in the report and nothing reported was actually said.

I don’t agree. Anything you say would be “inherently likely to provoke a whiny reaction, causing the person to tell on you”. SJWs don’t know how to fight, so there can’t be any fighting words. Maybe a bitch slap, at most.

It’s a weird holdover from a more honor based culture and should not exist. I don’t care what someone says to you, it is on you if you decide to get violent. There are no words that require you to punch someone.

Zangala and his boss, Sullivan County District Attorney James Farrell, “discussed the fact that plaintiff might have a First Amendment defense to the charge,” but “Farrell instructed Zangala to file the charge” anyway.

Their textbooks on the First Amendment must have been lost in a bizarre woodchipper accident

Millions of people who have fucked up their credit as a youngster, had a brush with the law, or had an unfortunate, yet resolved, dealing with any number of taxation wings have moved on to improving and developing into responsible fuckers with unpleasant personal information locked down on forms and filings in their past that have not a single goddamn thing to do with their optimized present state.

The past is absolutely used to discriminate against those seeking employment.

The ubiquity of persistent and readily available deeply-personal information combined with vast storage capacity is wreaking havoc on the ability of people to engage in the evolutionary and biological reality called ‘maturation’.

I fucking believe even a murderer, a rapist, a wife or husband beater, and even a pedophile should be given the opportunity within a lifetime to deviate into improved lives after punishment- much less a college chick who got off on the wrong foot and missed a few car payments fucking up her credit for years nuking her employment potential.

Society seems to struggle with the concept that humans are incredibly imperfect while being incredibly and often amazing.

I agree. But are you forgetting that credit changes over time? If I’m an employer I can actually use judgment to determine whether someone had a onetime rough patch or is habitually delinquent. Or are you suggesting that govt needs to intervene in yet another private transaction?

I always suggest that the government fix all the problems, Steve. Government is like a cardboard box of angels that should always be opened so that the world can thrive forever under the sparkles and twilights of shimmering nebulae.

On another note and more to the point, I have specific knowledge of a case that just occurred this summer where a talented young man was discovered by a headhunter and referred to a very large corporation for a position and he was effectively hired pending a credit and background check which he assumed like anyone in his position to be stellar- so he gave notice at his current job.

He’d prob pull in 80k per year. The young man had a great credit history, no brushings with the police, and employable by even the most stringent fucks. His past tax filings with the local county over a piece of property included a single missed payment that was resolved a month later. No interest or penalty was applied and the matter was done and the county was happy.

This tiny tidbit of negativity that amounts to absolutely zero in terms of using this to judge this young man’s character turned up on a background check and the boy was not hired and he had already lost his previous employment.

A smidgen of negativity has essentially put this kid back a decade. That is fucking discrimination and no, I don’t want the goddamn government to ‘fix’ it. Bullshit should be called bullshit though.

I wouldn’t call for a law forbidding it, but it would be nice if the credit rating agencies would stop giving the reports to people who aren’t potential creditors. If I’m not trying to borrow money from you, what business do you have looking at my credit history.

Zoran Milanovic, the prime minister of Croatia, says his country is ready to accept migrants “regardless of their religion and the color of their skin” and will help them go to Germany, Scandinavia or where they want in Europe.

The towns in that area consist mostly of Hasidic retreats. Monticello has the motor club where the richers go to race their cars, and Roscoe has a distillery and a small brewery, and there is Bethel Woods, and that is pretty much it for the entire county. There is going to be a casino soon, but that is not going to change much.

The Southern Tier down to Sullivan is where New York should be fracking, but instead it just stays economically depressed.

‘Although Seibel expressed skepticism that Barboza will be able to meet the “stringent standard” for proving a failure-to-train claim, which requires showing “deliberate indifference” to constitutional violations, she said he should get a chance to make his case.’

I been privy to a number of discussions in the administrations of three different municipalities, in two different states, which easily demonstrated a deliberate indifference to constitutional violations. One might say it’s a small sample size, but it’s still one hundred percent of municipalities whose inner workings I’ve witnessed were this way and it seems unlikely I randomly happened on the three tyrannical cities, while the majority is otherwise concerned with respecting citizens’ rights. Especially since the majority clearly behaves as though it has a policy of deliberate indifference–it’s just we don’t get to overhear their private meetings.

There’s a simple solution to this. If you can strip an American citizen of his second amendment rights for a state felony then you can strip an American citizen of his first amendment rights for a traffic ticket. Pass such a law, find him guilty of speeding, that strips him of his right to freedom of speech, you can now prosecute him for the added text on the ticket. It’s amazing how simple this is.

Now we just need to make it so only Christians (the real ones like Baptists, not those Mormon idiots) have freedom of religion.

In my perhaps jaundiced view, the representatives of Law and Order, the two police officers excepted, should be drop kicked into the middle of next year, prior to being removed, with prejudice, from “public service”. In my view, and I’ve been ticketed for speeding too, which left me less than happy, Mr. Barboza might consider paying attention to posted speed limits, and otherwise moderating his language.